Wednesday, July 15, 2015

In Searcy Denney Scarola Barnhart& Shipley, P.A. v. State(4D13-3497), a divided panel of the Fourth District held that the "guardianship court’s decision to recognize the Legislature’s prerogative of
limiting the payment of fees and costs [in this case] to $100,000." The opinion was written by Judge Forst. Judge Conner joined the majority opinion and also wrote a concurring opinion. Chief Judge Ciklin wrote a 19-page dissenting opinion. The majority opinion described the facts as follows:

The law firm "represented the family in a five-week jury trial in 2007.
The jury found that Lee Memorial Health System’s employees had been
negligent and that their negligence had resulted in damages to Aaron and
his parents. The jury awarded Aaron over $28.3 million. His mother was
awarded $1,340,000 in damages, and his father was awarded $1,000,000.
However, the trial court found that Lee Memorial was an independent
special district of the State of Florida and, pursuant to the sovereign
immunity damage limitations in section 768.28(5), Florida Statutes (2007),
entered a judgment against the hospital in the amount of $200,000. The
trial court rulings were affirmed by the Second District Court of Appeal.
Lee Mem’l Health Sys. v. Edwards, 22 So. 3d 81 (Fla. 2d DCA 2009).

In an attempt to recover additional funds beyond the $200,000 limit, the law firm submitted a claims bill to the Florida legislature.

In 2012, after
a public campaign in support of the bill, the Legislature passed Claims Bill
2012-249, directing Lee Memorial to appropriate $10 million, with an
additional $5 million payable in annual installments, “to the Guardianship
of Aaron Edwards, to be placed in a special needs trust for the exclusive
use and benefit of Aaron Edwards, a minor.” Ch. 2012-249, § 2, Laws of
Fla. No monies were appropriated for the use and/or benefit of either
parent for their damages. The claims bill also included a stipulation
stating “[t]he total amount paid for attorney’s fees, lobbying fees, costs,
and other similar expenses relating to this claim may not exceed $100,000.” Id. § 3. It is this provision that is the focus of the matter before
us.

After the $10 million had been paid into a trust for Aaron Edwards's needs, the lawyers ("with support from the Edwards family"), asked the court to allocate $2.5 million for attorney's fees. "The petition premised this request on a
25% fee cap provision in section 768.28(8) and on the argument that the
fees and costs limitation in the claims bill was unconstitutional."

On the merits of the issue presented, the court began with an analysis of sovereign immunity.

The doctrine of sovereign immunity stretches back to the foundations
of Anglo-American common law. Espousing the maxim that “the King can
do no wrong,” Blackstone explained that “no suit or action can be brought
against the King, even in civil matters, because no court can have
jurisdiction over him.” 1 WILLIAM BLACKSTONE, COMMENTARIES *235. However, should a subject of the Crown have “a just demand upon the
King, he must petition him in his court of chancery, where his chancellor
will administer right as a matter of grace, though not upon compulsion.”
Id. at *236.

When the common law was exported to the American continent,
sovereign immunity came with it.

***

Section 768.28, Florida Statutes, is the codification of the state’s
limited waiver of sovereign immunity in tort actions. A plaintiff’s recovery
against the state and its agencies or subdivisions is limited to no more
than $200,000 per incident. § 768.28(5), Fla. Stat. (2007). Moreover, in
cases where a judgment exceeds $200,000, “that portion of the judgment
that exceeds these amounts may be reported to the Legislature, but may
be paid in part or in whole only by further act of the Legislature.” Id.

After an analysis of the legal opinions regarding the statute and its application when the legislature limited compensation to lawyers, the court turned to the case before it. The court stated that "in the instant case, as in Gambleand Noel, the Legislature passed a
claims bill that provided a specific amount of attorneys’ fees that was
significantly less than the amount contracted for between the Edwards
family and their law firm, Searcy Denney." Addressing the ultimate conclusion, and the dissenting opinion, the court stated:

Notwithstanding Appellants’ (and the dissenting opinion’s) arguments
to the contrary, Gamble and Noel, and the reasoning therein, support the
guardianship court’s decision to recognize the Legislature’s prerogative of
limiting the payment of fees and costs to $100,000. A claims bill, both
before and after the enactment of section 768.28, is a “voluntary
recognition of its moral obligation by the legislature” and, as such, is firmly
entrenched in the sphere of legislative discretion. Noel, 984 So. 2d at 1267
(quoting Gamble, 450 So. 2d at 853). “Parties cannot enter into a contract
to bind the state in the exercise of its sovereign power. . . . The legislature
was in no way bound to pass legislation conforming with the provisions of
the prior contingent fee contract.” Gamble, 450 So. 2d at 853. “That the
claim[s] bill is separate and apart from the constraints of an earlier lawsuit
is demonstrated by the supreme court’s recognition that [the] legislature
has the power to limit attorney’s fees in a claims bill, no matter what the
underlying fee contract provides[.]” Noel, 984 So. 2d at 1267. “A claim[s]
bill is not obtainable by right upon the claimant’s proof of entitlement, but
rather is granted strictly as a matter of legislative grace.” Wagner v. Orange Cnty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007); see also United Servs.Auto Ass’n v. Phillips, 740 So.2d 1205, 1209 (Fla. 2d DCA 1999).

In conclusion, the court stated: "Appellants’ (and the dissenting opinion’s) dissatisfaction with the
limitation on attorneys’ fees and costs imposed in Aaron’s claims bill is
understandable, and the possibility of such a restriction in a claims bill
posits an additional factor to be considered by counsel in deciding whether
to take on representation in a case in this state involving a sovereign entity
defendant. Appellants’ reply brief states, 'If there is no reasonable
financial incentive for lawyers to take these type cases, the injured will go
unrepresented.' To what extent this is true is beyond our focus. Therefore, we affirm the guardianship court’s ruling."

Anytime legal analysis traces back to Blackstone and the foundations
of Anglo-American law, one knows core legal values are being addressed.
I write to further explain why I cannot agree with the reasoning of the
dissent, although the dissent makes very cogent arguments as to why
Gamble and Noel should not control the outcome of this case.

The premise of the dissent is that by enacting section 768.28, Florida
Statutes, the legislature altered the “legislative grace” attribute of its
monetary awards by making a judicial or administrative award a
precondition for initiating the claims bill process. The argument is that
you can’t even try to pass through the doors of the legislature until you
successfully pass through the doors of the courthouse. Thus, the two
processes are welded; this means the “act of grace” analysis has been
“transcended” because the weld now raises the specter of “a chilling effect
upon the sacrosanct and fundamental constitutional right to access to our
courts.”

The fly in the ointment regarding the dissent’s argument is the failure
to recognize that seeking redress from the legislature is fundamentally
different from seeking redress from the court. Every citizen has a
fundamental right to seek redress from the court because that is a core
function of the judicial branch of government. There is no fundamental
right to seek redress from the legislature because such is not a core function of that branch.

***

Therefore, I agree with the majority opinion that unless our supreme
court changes course in its legal analysis regarding separation of powers,
arguments regarding impairment of contract, unconstitutional taking,
denial of due process and equal protection and all variations on those
themes are unpersuasive.

I respectfully dissent and offer my overall assessment of the crucially
important issues involved in this case, the ultimate resolution of which
will have deep and profound ramifications for many Floridians—and for
many years to come.

***

Because the claim bill’s limitation on attorneys’ fees and costs is an
unconstitutional impairment on the Edwards family and firm’s right to
contract, I would reverse. I have taken the liberty to also write to remind
the readers of this dissent and all Florida lawyers, that contingency fee
agreements are directly connected to every citizen’s right to access to our
courts. I cite to the Florida Code of Professional Responsibility which
contemplates the ethical and moral obligation of “us lawyers” licensed to
practice in this state, to always consider the contingency fee agreement as
the “poor man’s key to the courthouse.” Because of the enactment of
section 768.28, which now requires that aggrieved individuals first invoke
the civil process of law before even approaching the Legislature for
sovereign immunity relief, the “key” should be easily accessible. The right
to this key is rich and deeply rooted in American history and it is a judicial
time-honored duty and responsibility to protect the inalienable rights of
our people in this regard.

Wednesday, July 1, 2015

In North Broward Hospital District et al v. Kalitan (4D11-4806), a panel of the Fourth District Court of Appeal concluded that a 2014 decision of the Florida Supreme Court required it to conclude that the legislative caps on non-economic damages in personal injury cases violates the equal protection clause of the Florida Constitution. The Fourth District's decision began as follows:

In Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), the
Florida Supreme Court determined that the caps on noneconomic
damages awards in wrongful death cases, imposed by section 766.118,
Florida Statutes (2005), violated the equal protection clause of the Florida
Constitution. Art. I, § 2, Fla. Const. The instant case consolidates three appeals from a single medical malpractice incident with a final judgment
finding Appellants, defendants below (“Defendants”), liable for the injuries
and damages suffered by Appellee Susan Kalitan (“Plaintiff”). Plaintiff’s
jury-awarded damages were limited by the trial court’s application of section 766.118, and Plaintiff’s cross-appeal challenges the constitutionality of those caps.

Accordingly, this appeal presents an issue of first impression in the
post-McCall legal environment—whether the opinion (or, more accurately,
opinions) of the Florida Supreme Court in McCalldictates our holding that
the caps on noneconomic damage awards in personal injury medical
malpractice cases are similarly unconstitutional. Although Defendants
attempt to distinguish the caps in wrongful death cases from those in
personal injury cases, and there are clear distinctions, McCallmandates a
finding that the caps in section 766.118 personal injury cases are similarly
unconstitutional. To conclude otherwise would be disingenuous.
Consequently, we reverse the trial court’s decision below insofar as it
reduced the jury’s award of noneconomic damages based on the caps in section 766.118.

Note that it is the 2014 version of section 766.118 linked throughout the quote above. Section 766.118, Florida Statutes (2005), cited in the quote above, can be viewed HERE. The 2005 version was apparently amended twice. See s. 204, ch. 2007-230; and s. 28, ch. 2011-135.Next, the opinion explained the multiple decisions that make up the Florida Supreme Court's decision in McCall, and why the panel determined that the supreme court's plurality opinion in McCall must be followed in this case. The court seems to make it clear that whether or not you agree with the conclusion regarding the constitutionality of the caps is an issue to be taken up with the Florida Supreme Court - and therefore an issue this appellate court need not independently address. In conclusion, the court stated:

CONCLUSION

Per McCall, Plaintiff’s noneconomic damages were improperly limited by
the application of the caps in section 766.118 and, accordingly, we reverse
the noneconomic damages award in the final judgment. Defendants have
asked this court to distinguish single claimant personal injury cases from
the multiple claimant wrongful death situation addressed in McCall.
However, we have found no basis to do so that would not conflict with the
reasoning of the Florida Supreme Court’s plurality and concurring
opinions, which strike at the underpinning of the Legislature’s caps on
noneconomic damages in general. So long as the caps discriminate
between classes of medical malpractice victims, as they do in the personal
injury context (where the claimants with little noneconomic damage can
be awarded all of their damages, in contrast to those claimants whose
noneconomic damages are deemed to exceed the level to which the caps
apply), they are rendered unconstitutional by McCall, notwithstanding the
Legislature’s intentions.

The trial court is directed to reinstate the total damages award as found
by the jury, though these damages may still be limited by the doctrine of
sovereign immunity. Also, in the corrected final judgment, the University
is not to be held liable for the damages attributable to the Nurse. As no challenge was raised as to liability in any other context, nor was a
challenge raised regarding Plaintiff’s economic damages award, those
portions of the final judgment are affirmed.

Jury Instructions

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